Parties were divorced and Wife was awarded primary physical
custody and the parties were awarded joint-physical custody of the minor
child. Wife was also awarded child
support based on the sole custody child support worksheet. Husband, who was awarded more than 30% of
overnights appealed.

The Court of Appeals found that Husband did have more than 30% of
the overnights, however, joint-physical custody requires more than 30% of
overnights, but also requires that both parents contribute to the expenses for
the child in addition to paying child support.
SeeU.C.A.
§78B-12-102(14).

Husband and Wife were divorced.
Wife was awarded half of the equity in a ranch and adjoining property
that Husband inherited and paid for with inherited money. In the time leading up to trial, Husband went
through 3 attorneys and file a motion to recuse the judge in order to extend
the time until trial. The trial court
found that he violated rule 11. Husband
appealed the property distribution and the Rule 11 findings.

The Court of Appeals declined to disturb the trial court’s finding
that Wife contributed to the maintenance of the ranch and that Wife’s parents
loaned the parties money to cover their needs and allow them to purchase the
additional land and maintain the ranch.
As to the classification of the adjoining property as marital property,
Husband failed to properly marshal the evidence and as such, the Court refused
to overturn the trial court’s decision.
Further, because of Wife’s contribution of income and contributions to
the ranch, it was not an abuse of discretion to award her 50% of the value of
the premarital property. However, the
Court found that the Ranch could not be ordered sold because it was already
sold. The Court affirmed the trial court’s
division of the value and remanded the issue to determine Wife’s remedy.

At the hearing, the Court heard opening statements and requested
that the parties stipulate to the Court considering the opening statements a
proffer of the parties testimony. The
parties agreed. Part of Sloane’s was a
proffer of statements made about Sloane on Brown’s blog. The Blog contained Brown’s summary of events
including her desire to kill Sloane’s dog and her attempts to get Sloane evicted. The Court found that Sloane had sufficiently
demonstrated Brown’s course of conduct directed at her that would cause a
reasonable person to fear. Brown Appealed.

Brown argued that the Court should not have accepted the proffer
as testimony. The Court of Appeals found
that the Court’s action was not plain error; and if there was any error by the
trial court, it was invited error because Brown agreed with the court’s
consideration of the proffer.

Brown also argued that her blog posts were protected speech and
were not directed at Sloane. The Court
of Appeals found that Brown failed to submit any law that supported her
position. Finally, the law does not
require that the threatening statements be made to the petitioner, but also
allows for threatening statements made about
an individual can also be a basis for the entry of a stalking injunction. Affirmed.

Husband and Wife were divorced.
Wife was awarded alimony based on a standard of living that would
include a hypothetical $140,000 home.
The Court also awarded $200/month for the cost of animal feed for a
minor daughter’s horses. Husband
appealed.

The Court of Appeals found that the relying on the $140,000 home
was reasonable without any evidence to support such a number. The court also found that the $200 for the
animal costs appeared to be more related to the child’s extracurricular
activity than to Wife’s standard of living.
Because it was an extracurricular expense, the Court of Appeals amended
the award to deduct the cost of the animal feed.

The Court was divided on the both issues with a dissenting opinion
on each. Judge Orme dissented on the
alimony award and asserted that the trial court should not have awarded alimony
based on a hypothetical home. Jude Orme
accused the trial court of punishing husband for his fault for artificially
lowering the parties living conditions during the marriage; and since fault
cannot be used as a factor (keep in mind the new changes to U.C.A. §30-3-5, passed by legislature,
not yet signed by Governor).

Judge Thorne believed that the $200 for the feed should have been
included in the alimony award because Wife’s standard of living had always
included horses.

Friday, March 15, 2013

Husband was diagnosed with cancer and preserved his semen prior to
chemotherapy. Husband died and Wife used
the sperm for artificial insemination.
Wife gave birth and applied for social security benefits for the child
and listed deceased-husband as the father.
Social security denied Mother’s claims.
Mother requested that the Federal District Court review the administrative
to the federal district court. The
Federal Court sent the question of law to the Utah Supreme Court to determine
if the donor could be a Father under Utah law.

The Supreme Court found that in order to be a parent of a child who
resulted from cryopreserved semen or embryo, the donor must agree in a record and
consent to be considered the parent of said -child. (See
U.C.A. 78B-15-707). Husband never signed an agreement consenting to being
the parent of a child conceived posthumously and as such is not considered a
parent.

Husband and Wife came to an agreement as to ongoing disbursements
from a film company. Husband was to
prepare an accounting of each disbursement along with a portion of the payment
to wife. Wife was dissatisfied with the
accounting and filed an order to show cause against Husband. The Commissioner did not hold Husband in
contempt and found based on the evidence presented that Husband was in
substantial compliance. Wife objected to
the recommendation.

The Court of Appeals found that it was Wife’s burden to show that
Husband knew of the order, had the ability to comply, and failed to comply; and
she must do so by clear and convincing evidence. In this case, the Court found that Husband
was in substantial compliance. Wife
asserted that the trial court should have placed the burden on Husband to show
that he was in compliance. The Court of
Appeals disagreed with Wife and found that the burden shifts only in instances
when a party argues inability to comply, which is essentially an affirmative
defense. In this case, Husband did not
argue that he was unable to comply; instead, Husband’s argument was that he was
in compliance. The Court of Appeals
agreed with Husband.

Mother and children were under Juvenile Court jurisdiction. Mother failed to comply with the reunification
plan and attempted to flee with the children.
The children were removed from Mother.

The State petitioned to terminate mother’s rights. The State sought discovery from mother in the
form of 206 Requests for Admissions.
Mother gave a blanket denial on the last possible day and later admitted
to 126 of the requests. The trial court
found mother’s blanket denial ineffective and deemed all 206 admitted, granted
the state summary judgment as to unfitness and held a trial as to best
interests. The trial concluded in the
termination of mother’s parental rights.
Mother appealed the trial court’s action of deeming the requests
admitted, and the trial court’s failure to hold a shelter hearing after the
final removal.

The Court of Appeals found the right to due process (i.e. the request
for a shelter hearing) was not violated by the lack of a shelter hearing because
mother admitted to sufficient grounds for the removal. Even if the shelter hearing was required and
was held the result would have been held, the result would be the same.

The Court of Appeals also found that the trial court’s alleged
misconduct as to the Request for Admissions could be no more than harmless
error. This is because Mother admitted to 126 of the requests and the remaining
requests were proven by testimony.

Lastly as to mother’s criticism of the Court of Appeals manner of
handling juvenile court matters (i.e. awarding special deference to conclusions
of the juvenile court), the Court of Appeals again rejects any need for de novo
review of child welfare cases.

In Husband and Wife’s stipulated divorce decree, husband was
ordered to pay $3000 per month as a property settlement and child support. Wife remarried. Husband did not learn of the remarriage for
two years, upon learning of the remarriage he petitioned the court to modify
his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the
trial court classified payments as alimony.
However, the Court terminated alimony on the day of the trial and not the
date of remarriage. Husband appealed.

The Court of Appeals affirmed
the trial court’s denial of retroactively modifying the alimony award to
the date of remarriage. The Court found it was Husband’s burden to have the payments
classification corrected. The court analogized
this re-classification procedure with having to establish cohabitation in order
to end alimony. The misclassification in
the decree is effective until a party asks to correct it. The Court of Appeals did modify the award
retroactively to the date the Petition to Modify was filed.

Husband appeals the trial court’s order striking his pleadings and
entering his default. Husband argues (1)
that the court erred in striking his pleadings, (2) that he did not have proper
notice of the case, (3) that the district court erred in its classification,
and (3) its division of property.

The Court of Appeals found that the trial court did not err when
striking Husband’s pleadings for his failure to participate in the Utah
Case. Husband had frustrated discovery
on several occasions throughout the case by attempting to continue hearings and
avoid his own deposition. In the
meantime, he filed several actions in the California court. He claimed his anxiety and depression
prohibited him from participating in the Utah court, while filing several
motions in California court. Because of
Husband’s actions the trial Court did
not err striking his pleadings.
Additionally, Husband’s appellate brief did not marshal all of the
evidence in support of the trial court’s order and as such, the Court of
Appeals could not consider his argument on the merits.

Court of Appeals also found that Husband had actual notice of the
hearings and never challenged jurisdiction based on inadequate notice. Husband failed to appear at most hearings,
even those that had been continued at his request.

The trial court failed to make adequate findings as to the
property distribution, indeed there was insufficient evidence to support the
trial court’s award of nearly all the property to wife. This portion is Remanded for more detailed findings on property distribution.

The trial court also failed to support its award of attorney fees. This too is Remanded for more adequate findings.

Wife obtained a Temporary Order that required Husband to pay her health
insurance. Husband failed to pay for the insurance. The insurance cancelled her coverage. Husband
was found in contempt.

Husband and Wife agreed Husband reinstate the insurance. Husband failed to do so and was found in
contempt again, he was ordered him to serve the original 30 days for each
contempt. The parties also agreed that
they would “look into filing a bankruptcy.”
Husband filed bankruptcy. Wife did not.

Husband appealed both the
trial court’s failure to hold Wife in contempt for her failure to file
bankruptcy.

The Court evaluated first
whether a party has standing to appeal a failure of a court hold a person in
contempt. The Court determined in this
case that because Wife’s failure to file bankruptcy resulted in a
disproportionate property and alimony award, Husband did have standing because
a finding of contempt on that issue could have decreased his alimony obligation
and could have resulted in a more equitable property distribution. However, because the agreement was only to
“look into” filing bankruptcy, there was no requirement for wife to file
bankruptcy. The Court of Appeals affirmed
the trial court’s finding of noncotnempt.

Disclaimer

:: By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.::

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